Corps of Engineers OCS Authority

The U.S. Court of Appeals for the First Circuit ruled that the U.S. Army Corps of Engineers has authority under the Rivers and Harbors Act of 1899, as amended, to issue permits for structures to be constructed on the U.S. Outer Continental Shelf (OCS) that may impact navigation on waters over the OCS. In the instant case, a company applied for a permit to construct and operate a data tower in Nantucket Sound. The data tower was to be used to determine the feasibility of constructing a large wind farm in the area. After analyzing the application, the Corps granted the permit, with conditions. Plaintiffs brought suit, contending, among other things, that the Corps’ authority over the OCS extended only to structures to be built for the purpose of exploring for, developing, or producing resources from the OCS. The court, after analyzing the legislative history of the 1978 amendments to the Outer Continental Shelf Lands Act (OCSLA), ruled that the Corps’ permitting authority applies to all artificial islands and fixed structures on the OCS, without regard to their purpose. Alliance to Protect Nantucket Sound, Inc. v. U.S. Army Corps of Engineers, No. 03-2604 Source: HK Law